Article II Section 10(d) of California’s constitution is brief, to wit:
“Prior to circulation of an initiative or referendum petition for signatures, a copy shall be submitted to the attorney general who shall prepare a title and summary of the measure as provided by law.”
That sounds like a routine ministerial chore and for decades, under attorneys general of both parties, it was just that.
However, in the last years of the 20th century, it began to evolve into another arena for pitched political warfare, when proponents and opponents of high-impact ballot measures realized that the wording of the terse official summary could decisively impact voters.
With Democrats dominating the attorney general’s office, a pattern emerged. Ballot measures sponsored by those on the political left, such as unions, would receive titles and summaries that enhanced chances of passage, while initiatives from the political right, such as anti-tax groups, would be cast in a negative light.
A classic of the genre was last year’s initiative aimed at repealing a multi-billion-dollar increase in gasoline taxes and automotive fees that the Legislature and then-Gov. Jerry Brown had enacted.
On Its Merits, the Repeal Effort Was Wrongheaded
Attorney General Xavier Becerra’s office wrote a summary that said it “Eliminates certain road repair and transportation funding. Requires certain fuel taxes and vehicle fees to be approved by the electorate.”
It ignored the measure’s central purpose, repealing the fees and taxes. At the time, polls indicated that voters were opposed to paying more to drive, but the misleading title helped the measure’s foes persuade voters to reject the initiative.
On its merits, the repeal effort was wrongheaded because California had neglected its streets and highways much too long, but the measure’s backers deserved even-handed, accurate treatment by Becerra’s office and were blindsided.
A new example is a very controversial ballot measure to amend Proposition 13’s limits on property taxes by creating a “split roll” that would increase taxes on commercial properties such as office buildings, hotels and warehouses.
The union-backed coalition submitted one version of the measure and even collected signatures to qualify it for the 2020 ballot, but it polled weakly. So proponents set it aside, tweaked the wording a bit and are now collecting signatures on a second version. At their request, Becerra’s office also made major alterations to the official title and summary.
The title of the first version stressed that commercial property would be “taxed on fair-market value” and the new revenues would go to “education and local services.”
Perhaps the Job Should Be Given to a More Neutral Entity
However, it polled poorly, so the second version stresses that it “increases funding for public schools, community colleges and local government services by changing tax assessment of commercial and industrial property.”
The change of emphasis, downplaying the multi-billion-dollar increase in taxes, is clearly aimed at taking advantage of voters’ oft-demonstrated affection for schools and local government services.
Obviously, Becerra and other attorneys general past, present and future shouldn’t be taking political sides on ballot measures. Obviously, too, they will continue doing so unless the process is changed.
Occasionally, those mistreated by the current process have persuaded judges to intervene and compel fairer versions. But that’s a poor substitute for fundamental reform.
Perhaps the job should be given to a more neutral entity, such as the state auditor or the legislative analyst’s office, which prepares the official estimate of measures’ fiscal impact.
Barring that, Article II Section 10(d) should be repealed and ballot measure proponents should be allowed to summarize their measures themselves. Even that would be fairer than the currently slanted official process.
CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary.